CHATHAM COURT FILE NO.: CR-19-3059-AP DATE: 20200120 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – FREDRICK EVANS Respondent

Scott Kerwin, for the Appellant Sharon L. Murphy, for the Respondent

HEARD: September 24, 2019

REASONS ON APPEAL Howard J.

Overview

[1] This is an appeal by the Crown pursuant to s. 813 (b)(i) of the Criminal Code [1] from the acquittal of Mr. Frederick Evans on charges of uttering death threats, contrary to s. 264.1(1)(a) of the Code, entered on April 24, 2019, by G. Wong J. of the Ontario Court of Justice in Chatham, Ontario. [2]

[2] In a four-count information, Mr. Evans was charged that he:

a. between the 11th day of August in the year 2017 and the 13th day of August in the year 2017, at the Municipality of Chatham-Kent, did by word of mouth knowingly utter a threat to Lee-Ann Shaver to cause death to Gerald Roger Bellamy, contrary to s. 264.1(1)(a) of the Code;

b. between the 13th day of August in the year 2017 and the 31st day of October in the year 2017, at the Municipality of Chatham-Kent, did by word of mouth knowingly utter a threat to Lee-Ann Shaver to cause death to Gerald Roger Bellamy, contrary to s. 264.1(1)(a) of the Code;

c. between the 13th day of August in the year 2017 and the 31st day of October in the year 2017, at the Municipality of Chatham-Kent, did by word of mouth knowingly utter a threat to Lee-Ann Shaver to cause death to Rhonda Brown, contrary to s. 264.1(1)(a) of the Code; and

d. on or about the 31st day of October in the year 2017, at the Municipality of Chatham-Kent, did by word of mouth knowingly utter a threat to Lee-Ann Shaver to cause death to Rhonda Brown, contrary to s. 264.1(1)(a) of the Code.

[3] It will be seen that all four charges involve the same Ms. Lee-Ann Shaver, being the person who allegedly heard the statements and reported them to the police. Ms. Shaver was the common-law partner of the respondent accused’s son, Thomas (also known as T.J.) Evans. As of the time of trial, they had been in a relationship for some five years.

[4] The targets of the alleged death threats were Ms. Rhonda Brown and Mr. Gerald Bellamy.

[5] The respondent accused had been in a common-law relationship with Ms. Rhonda Brown for some 30 years. That relationship ended at some point prior to August 2017. Subsequent to the breakdown of that relationship, Ms. Brown began to reside with Mr. Gerald Bellamy.

[6] In other words, the targets of the alleged death threats said to be uttered by Mr. Evans were his previous long-term common-law partner and her new common-law partner.

[7] Mr. Evans denied making all of the statements alleged to comprise death-threat utterances. He pled not guilty to all four counts.

[8] The trial commenced and concluded in one day, on April 11, 2019, in the course of which the trial judge heard testimony from only two witnesses, being Ms. Shaver, and the respondent accused, Mr. Evans. Counsel made final submissions that same day in the afternoon, and following counsels’ submissions, the court reserved judgment.

[9] Upon the resumption of the proceedings on April 24, 2019, Wong J. delivered oral reasons for judgment from the bench, in which she dismissed the information against Mr. Evans. The transcribed version of Her Honour’s reasons for judgment consumes some 21 pages of the transcript. It is common ground that Her Honour delivered her oral reasons for judgment from written notes.

[10] By notice of appeal dated May 10, 2019, the Crown appealed the dismissal of all four charges on the information against Mr. Evans.

[11] For the reasons that follow, I would dismiss the Crown’s appeal.

Factual Background and Decision of the Trial Judge

[12] As I have said, the 30-year common-law relationship between Mr. Evans and Ms. Brown ended prior to August 2017. The evidence of Mr. Evans was that on May 30, 2017, Ms. Brown ended the relationship, moved out of their residence, and moved in with Mr. Bellamy. [3]

[13] On August 5, 2017, there was a collision between two motorcycles in the Union Gas parking lot in Chatham, Ontario. Mr. Evans was riding one motorcycle, and Mr. Bellamy and Ms. Brown were riding the other one. Mr. Evans was charged with various criminal offences as a result of the collision, including dangerous driving, dangerous driving causing bodily harm to Mr. Bellamy, and assault with a weapon.

[14] Following the collision on August 5th, Mr. Evans spent a few days in hospital for treatment for his injuries resulting from the collision.

[15] Upon his release from hospital, Mr. Evans was the subject of a judicial interim release order that required surety supervision. Given her relationship with the respondent’s son, T.J., Ms. Shaver offered to serve and was accepted as Mr. Evans’s surety.

[16] The terms of Mr. Evans’s recognizance required him to reside with his surety, Ms. Shaver. As a result, Mr. Evans moved into Ms. Shaver’s apartment, where she resided with T.J. and her nine-year-old daughter.

[17] The evidence before the trial judge indicated that there were frequent arguments within Ms. Shaver’s home.

[18] While on surety release between August 11, 2017, and October 31, 2017, Mr. Evans is alleged to have said to Ms. Shaver that he “would hide in the bushes and jump out and cut their throats.” It is alleged that Mr. Evans was referring to Ms. Brown and Mr. Bellamy.

[19] That said, the trial judge found that although Ms. Shaver was concerned about the mental health of Mr. Evans and the threatening nature of the alleged statements, she knew that Mr. Evans was physically incapable of hiding in bushes and jumping out at someone, due to the broken toe, broken ankle, four broken ribs, and bleeding in his left lung, [4] all of which he sustained as a result of the motor vehicle collision of August 5, 2017.

[20] Further, following a criminal court appearance on October 31, 2017, Mr. Evans is alleged to have stated to Ms. Shaver that he would strangle Ms. Brown.

[21] In addition, at some undefined time during his surety release, Mr. Evans is alleged to have said to Ms. Shaver that he would run his vehicle into Mr. Bellamy’s residence and kill Mr. Bellamy, Ms. Brown, and himself.

[22] At some further undefined period during his surety release, Mr. Evans is alleged to have expressed wanting to hurt Mr. Bellamy and Ms. Brown “as much as [he had] been hurt.”

[23] According to Ms. Shaver, the threats of Mr. Evans were made numerous times and were not stand-alone statements but were made “in the context of [Mr. Evans], one, fixating on counting his [medications] numerous times during the day, two, reacting possibly to new meds, at least according to her observations, [and] three, arguing constantly with T.J., his son.” [5]

[24] Ms. Shaver testified that Mr. Evans frequently drove by Mr. Bellamy’s residence and, on at least one occasion, Ms. Brown’s residence. Further, the trial judge found that, according to Ms. Shaver, Mr. Evans was angry and upset at both Ms. Brown and Mr. Bellamy, and he also showed signs of depression. [6]

[25] The evidence of Ms. Shaver at trial – and, importantly, the finding of the trial judge – was that Ms. Shaver was worried about Mr. Evans’s reaction and, in particular, she was worried that Mr. Evans would hurt Ms. Brown, Mr. Bellamy, and/or himself. [7]

[26] The trial judge found that the evidence of Ms. Shaver “was clear that she expressed her concern to T.J. They had discussions about Fred’s [the respondent’s] behaviour. But it was only after a final blow-up on November 4th, 2017, that she took steps to remove herself as a surety, thereby ensuring that Fred would have to move out of the house.” [8]

[27] The “blow-up” referenced in the trial judge’s reasons was described by Ms. Shaver in her evidence given in examination-in-chief. Her evidence was that on Saturday, November 4, 2017, her boyfriend, T.J., and his father “were fighting in my living room and yelling and screaming, and my daughter was in bed. It was only like six, seven o’clock in the morning.” [9]

[28] It is common ground that Mr. Evans called the police on November 4th, and the police did in fact attend at the apartment that day. The evidence of Ms. Shaver, however, was that when Mr. Evans spoke with the police officer, he told the officer that it was not Mr. Evans and his son who were arguing but, rather, it was Mr. Evans and Ms. Shaver who were fighting. [10]

[29] In cross-examination, Ms. Shaver admitted that at no time did she tell the police who attended at her apartment on November 4th about the alleged threats that she says Mr. Evans had made. [11] However, she made it clear to the police that she wanted Mr. Evans “out of the house.” [12] In fact, she “wanted him out right then and there.” [13] In cross-examination, Ms. Shaver agreed that Mr. Evans’s continued presence in the home was causing some difficulty between herself and her partner: “[y]eah, it was causing problems, big time.” [14]

[30] The evidence of Mr. Evans provided a somewhat different account of the dealings in the home that led to him calling the police on November 4th.

[31] The evidence of Mr. Evans was that, generally, he was not happy staying at Ms. Shaver’s apartment and that he had been trying to effect a change of residence in the terms of his recognizance for some time. When asked why he wanted a change of residence, Mr. Evans answered that his son and Ms. Shaver “fought a lot.” [15] Mr. Evans testified in chief that, “they were fighting a lot. [T]hey’d stay up late, then go to bed and sleep in all day. … [I]t just was not a good environment, and I just didn’t want to be there.” [16] He testified that there had been conflict between him and his son, [17] and between him and Ms. Shaver, [18] and Ms. Shaver had advised him that she wanted him out. [19]

[32] In his evidence, Mr. Evans also attempted to explain what Ms. Shaver believed was his odd behaviour of repeatedly counting his medications, in particular, his Percocet pills. [20] Mr. Evans testified that his son, T.J., was an addict who went through “the program.” Mr. Evans said he was “very scared” of the possibility that T.J. might relapse, and so he “was counting them all the time to make sure none had disappeared” and that T.J. had not “strayed” from the course he needed to be on “so that he wasn’t getting addicted to anything like this. … I was just terrified all the time that he might fall back.” [21]

[33] Mr. Evans testified that he asked his son whether he had touched his medication, which, he said, caused T.J. to become angry with his father; it caused some conflict between father and son because Mr. Evans doubted T.J. [22]

[34] Mr. Evans also described in his evidence why he had some belief that Ms. Shaver was also touching his medication. Mr. Evans testified that he stored his medications on the top of a stand-up freezer so that they would be well out of the reach of Ms. Shaver’s daughter. Mr. Evans explained the importance of keeping the drugs out of reach of the youngster “because I lost a sister who died by taking drugs … that we left down low.” Mr. Evans testified that one day, he “caught” Ms. Shaver getting his pills off the top of the freezer, and he “asked her what she was doing and she said she was just looking for something”; however, since Mr. Evans believed that the only thing on top of the freezer was his pill containers, he suspected Ms. Shaver might be trying to get into his pills. [23]

[35] When asked if that caused any conflict with Ms. Shaver, Mr. Evans replied that it caused a “very large conflict” and it led to his request to change residences. [24]

[36] In contrast to Mr. Evans’s concerns, Ms. Shaver denied in cross-examination that T.J. was an addict, denied that she ever took his pills, and testified that “nobody in my house uses drugs.” [25]

[37] Mr. Evans also testified about the specific events of November 4th that prompted him to call the police. It is common ground that Ms. Shaver was charging Mr. Evans $300 in rent to stay in her apartment. [26] It is also common ground that Ms. Shaver had provided Mr. Evans with written receipts for at least the first two months’ payment of rent. [27]

[38] The evidence of Mr. Evans was that Ms. Shaver asked him to return to her the rent receipts that she had given him; Mr. Evans believed that Ms. Shaver was on social assistance, and he understood that no one was supposed to be living with her and, further, that it would adversely affect her social assistance status if she was in receipt of rental payments. [28] The evidence of Mr. Evans was that he and Ms. Shaver got into an argument over the receipts, that Ms. Shaver “went off like a rocket ship, screaming, hollering at me,” [29] and that led to an argument between Mr. Evans and his son, [30] as “T.J. is the one that was fighting with me to get the … receipts back.” [31] Mr. Evans was asked why he called the police, and he replied: “[t]hey just got out of hand, and it was screaming and hollering and language was just not fit for that little girl to be hearing for one thing. Ah, it just escalated to the point that I had to be out of there.” [32]

[39] In any event, on Monday, November 6, 2017, Ms. Shaver attended at the courthouse, terminated her status as Mr. Evans’s surety, and then subsequently reported the alleged statements to the Chatham-Kent Police Service.

[40] In other words, it was not until November 6, 2017, some three months after the first alleged statement by Mr. Evans, that Ms. Shaver reported the alleged utterances of Mr. Evans to the police.

[41] It is common ground that one of the consequences of Ms. Shaver pulling her surety was that Mr. Evans left the residence at Ms. Shaver’s apartment. He then went to live with his brother and sister-in-law.

[42] The evidence before the trial judge indicated that, as of the time of trial, Ms. Shaver and T.J. were still in a relationship [33] but Mr. Evans and his son were estranged. [34] Moreover, Ms. Shaver’s evidence was that she and Mr. Evans had not spoken again since he moved out of her residence. [35]

[43] It is clear that there were sharp divisions in the evidence between Ms. Shaver and Mr. Evans at trial. That point was certainly not lost on the trial judge. As the central issue was credibility, the trial judge correctly recognized that the case required analysis in accordance with the Supreme Court of Canada’s decision in R. v. W.(D.) [36] Indeed, the trial judge observed at the very outset of her reasons for judgment that:

It was a two witness trial: Ms. Shaver, the person who heard and reported the statements to the police, and Mr. Evans. The case requires a W.D. analysis. [37]

[44] Later in her reasons, the trial judge returned to essentially the same point, observing that:

In many cases – criminal cases, the issue of credibility is front and centre. This case is no different than those other many criminal cases. The type of case before me is often referred to as a “he said, she said”, not very articulate or eloquent, but clear in its simplicity. [38]

[45] After reviewing the various parties or “players” involved in the case and the alleged statements in question, the trial judge then proceeded to summarize the evidence of each of the complainant and the accused. She then conducted her credibility and reliability analysis of each witness.

[46] It is common ground that the trial judge gave considered and sensitive treatment to the evidence of Ms. Shaver. It is also common ground that the trial judge’s W.(D.) analysis was “proper and compelling,” to use the language of Crown counsel. As the Crown’s factum acknowledges, the trial judge gave “compelling reasons for the findings she made in this regard.” [39]

[47] As I read the trial judge’s reasons, on the question of whether the alleged statements were actually made, the trial judge rejected the evidence of Mr. Evans, in which he denied making the statements at all, and “accepted and found that Ms. Shaver’s evidence as it relates to the statements is reliable and credible.” [40] That is, the trial judge found that Mr. Evans made the statements alleged by Ms. Shaver.

[48] Having found that the impugned statements were actually made, the trial judge then considered whether those statements constituted a “threat” for the purposes of s. 264.1(1).

[49] In the course of her review, the trial judge expressly considered the circumstances in which the alleged statements of Mr. Evans were made and how those alleged statements were received by Ms. Shaver. The trial judge noted that:

Although concerned about Fred’s mental health and the threatening nature of the statements, Shaver also knew that Fred was physically incapable of hiding in bushes and jumping out. [41]

[50] The trial judge also considered the nature of the statements, as follows:

And let’s look at the statements: going to hide in the bushes, jump out and slit throats from a man with a broken ankle, broken toe, broken ribs and lung issues or even his statement I’m going to drive into Bellamy’s house and kill all three of us. In my view, these statements have a connotation or a context of being crazy talk. Certainly, the statements were sufficient to worry Lee-Anne that she spoke to T.J. about them and she also indicated in her evidence that she was concerned and talked to Fred about mental health counselling. [42]

[51] The trial judge then went on to consider the elements of the offence. Mr. Evans was charged with offences contrary to s. 264.1(1)(a), which provides that:

Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person; …

[52] The trial judge considered the meaning of the term “threat” in s. 264.1(1)(a) and noted that the authorities have held that, as she said:

The issue to be determined is … whether looked at objectively in the context of all the words written and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? [43]

[53] In this regard, the trial judge’s restatement of the law was entirely consistent with the dictum of Cory J., speaking for the unanimous Supreme Court of Canada in R. v. McCraw, where he concluded that:

The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? [44]

[54] The trial judge then went on to consider the constituent elements of the offence, that is, the prohibited act (actus reus) and the fault element (mens rea).

[55] In discussing the actus reus of the offence, the trial judge recited authorities that have held that:

The actus reus will be made out if a reasonable person aware of the circumstances in which the words were uttered would have perceived them to be a threat of death or bodily harm. The Crown need not prove that the intended recipient of the threat … [were] made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously. [45]

[56] In this regard, the trial judge’s restatement of the law was entirely consistent with the dictum of Cromwell and Karakatsanis JJ., speaking for the unanimous Supreme Court of Canada in R. v. McRae, where they concluded that:

To conclude on this point, the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm. [46]

[57] I also note that trial judge’s statement of the law was also entirely consistent with the submissions of the appellant Crown on the constituent element of the prohibited act, as set out in para. 21 of its factum.

[58] In discussing the mens rea of the offence, the trial judge recited authorities that have held that:

The mens rea is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. [47]

[59] Again, in this regard, the trial judge’s restatement of the law was entirely consistent with the conclusion of the Supreme Court in R. v. McRae, where the court held that:

The fault element is made out if it is shown that threatening words uttered or conveyed “were meant to intimidate or to be taken seriously” …

It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient … or that the accused intended to carry out the threat … . Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously … . [48]

[60] And again, the trial judge’s statement of the law was also entirely consistent with the submissions of the appellant Crown on the constituent fault element that must be proven, as set out in para. 22 of its factum.

[61] Applying those legal standards to the facts before her, the trial judge then concluded that:

I find in these circumstances and going back to an aspect of Ms. Shaver’s evidence that I have not yet summarized but at one point in time indicating that she was of the view that Fred Evans was blowing off steam when he was making these statements, I find then in accepting the context of her evidence it is clear that the mens rea and the – sorry, the actus reus part of the charge is problematic. Mr. Evans did not have at the relevant time where we have actual dates for the statements being made the ability to act on hiding in the bushes, jumping out and slitting throats, the first two parts of that, because he was physically restricted in terms of his mobility due to his injuries. Similarly, I had no evidence as it relates to when he was able to recommence driving, whether it’s a motorcycle or a car, and so the statement as it relates to taking a vehicle and driving it into the Bellamy residence and killing all three of them is problematic. For these reasons, all of the charges are dismissed. [49]

[62] Having read the entirety of the trial judge’s reasons for judgment more than once, and considering them as a whole, I am satisfied that what the trial judge was saying was that, as respondent counsel submits, [50] she dismissed the charges in the information because, in her view, the Crown had established neither the actus reus or the mens rea on the evidence before her.

[63] On appeal, the appellant Crown seeks an order allowing the appeal, setting aside the acquittal of the respondent accused, and entering verdicts of guilt on all counts and remitting the matter back to the Ontario Court of Justice for sentencing or, alternatively, an order that the matter return to the Ontario Court of Justice for a new trial.

Issues

[64] In its notice of appeal and factum, the appellant Crown raises various grounds of appeal, which are somewhat over-lapping and which I would summarize as follows:

a. Did the trial judge err in finding that the actus reus was not made out in the circumstances of the instant case?

b. Did the trial judge err in finding that the mens rea was not made out in the circumstances of the instant case?

c. Did the trial judge erroneously require the Crown to prove elements that do not form part of the essential elements of the offence charged?

Standard of Review

[65] The standard of review was not directly addressed in the parties’ factums in this case. However, it was the subject of exchange between the court and counsel during oral argument of the appeal. In my view, the standard of review plays an important role in this case, as it does in most appeals.

[66] The limited powers of a summary conviction appeal court are set out in s. 822(1) of the Code, which incorporates by reference the powers of the Court of Appeal as set out in s. 686 of the Code. As such, on an appeal from an acquittal, a summary conviction appeal court may dismiss the appeal, or allow the appeal, set aside the verdict, and order a new trial or, only where the provisions of s. 686(4)(b)(ii) are satisfied, enter a verdict of guilty.

[67] The limited jurisdiction of a summary conviction appeal judge was described by the Ontario Court of Appeal in R. v. Smits, where the court held that:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[.] [51]

[68] Our Court of Appeal has said that the function of a summary conviction appeal judge is to determine whether the trial judge could reasonably have reached the conclusion that it did. [52]

[69] In the same vein is the explanation of the function and scope of a summary conviction appeal judge offered by Durno J. in R. v. Salerno:

Before examining those areas, the function and scope of a judge sitting on summary conviction appeals must be kept in mind. I am not permitted to re-try the case and substitute my view of the evidence for that of the trial judge. I can examine the transcript and determine if there was evidence upon which the trial findings could reasonably have been made. I cannot substitute my own findings of fact when there was a basis for those reached by the trial judge. The trial judge has the advantage of seeing and hearing the witnesses. If there was an evidentiary basis upon which the findings could reasonably have been made I cannot interfere. [53]

[70] To the same effect is the more recent reiteration by our Court of Appeal in R. v. Polanco, where Nordheimer J.A. said on behalf of the unanimous court that:

The jurisdiction of a summary conviction appeal judge is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge is also not entitled to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[.] [54]

[71] Given the unqualified language that appears in s. 813(b)(i) of the Code, appellate courts have concluded that “an appeal by the Attorney General from dismissal of an information in summary conviction proceedings may be based on grounds of fact, mixed fact and law or law alone. The authorities confirm that the Attorney General has a right of appeal under s. 813(b)(i) on grounds involving questions of fact alone.” [55]

[72] The governing principle of review by an appellate court in an appeal concerning the factual assessments of a trial court was reaffirmed by the Supreme Court of Canada in R. v. Clark, as follows:

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm. [56]

[73] As the Supreme Court of Canada said in Housen v. Nikolaisen, the “palpable and overriding error” standard is a “stringent standard,” requiring an appellate court to afford the trial judge a “high degree of deference.” [57]

[74] Further, a question of mixed fact and law is also subject to the deferential “palpable and overriding error” standard, subject to the limited exception of whether an extricable error of pure law can be identified. [58] “Thus, on appeal, as a matter of mixed fact and law, … [w]here the legal question cannot be separated from the facts, a trial judge’s decision is subject to a more stringent standard; that is, the trial judge’s interpretation of the evidence overall will not be overturned absent palpable and overriding error.” [59]

Analysis

[75] Before examining some of the specific grounds of appeal advanced by the appellant Crown, I would make one general observation by way of overview on the various grounds of appeal alleged by the appellant Crown that the trial judge committed various alleged errors.

[76] In oral argument, counsel for the appellant Crown acknowledged that the trial judge correctly recited the constituent elements of the offence in issue. In particular, he acknowledged, in response to queries from the bench, that the trial judge correctly identified the actus reus and mens rea elements of the offence in question.

[77] In my view, the challenges raised by the appellant Crown on this appeal in connection with the so-called “errors of law” by the trial judge are really instances of alleged errors in applying the accepted legal standards or tests to a set of particular facts before the trial judge. As such, in my view, such alleged errors are questions of mixed law and fact. As the Supreme Court of Canada said in Housen v. Nikolaisen, “questions of mixed law and fact are questions about whether the facts satisfy the legal tests.” [60]

[78] Again, the jurisprudence of the Supreme Court indicates that some measure of deference is owed to the decision of a trial judge on a question of mixed fact and law and that “appellate courts should be reluctant to venture into a re-examination of the conclusions of [an inferior court] on questions of mixed law and fact.” [61]

[79] I approach the alleged errors of the trial judge in the instant case with these fundamental principles in mind.

Did the trial judge err in finding that the actus reus was not made out in the circumstances of the instant case?

[80] As I have said, it is common ground that the trial judge did not err in articulating the legal test for establishing the prohibited act when she held that the “actus reus will be made out if a reasonable person aware of the circumstances in which the words were uttered would have perceived them to be a threat of death or bodily harm.”

[81] In para. 28 of the Crown’s factum, the “[a]ppellant submits that a reasonable person made aware of the circumstances in which the words were uttered in the case before this Honourable Court, would clearly have perceived them to be a threat of death or bodily harm.” The appellant Crown goes on in para. 29 of its factum to list various factors on account of which the Crown believes, viewed objectively, “a reasonable person made aware of the context and circumstances … would very clearly perceive this as a threat.”

[82] Respectfully, for present purposes, the question is not whether the Crown’s belief that a reasonable person would perceive the utterances to be a threat is correct. Strictly speaking, the question is not even what I believe the reasonable person would perceive. The question for appellate purposes is whether the trial judge erred in her judgment of what the reasonable person would perceive.

[83] And in this regard, in my view, it is telling that in setting out its argument on the actus reus, the Crown’s factum does not even reference the trial judge’s reasons. [62]

[84] In my view, when one reads the reasons of the trial judge as a whole, it is plain that the trial judge identified and relied upon, principally, four grounds that support her conclusion that a reasonable person, fully aware of the circumstances in which the statements were made by Mr. Evans, would not have perceived them to be a threat of death or bodily harm.

[85] First, the trial judge expressly found that the statements in question “have a connotation or a context of being crazy talk.” [63] In other words, the trial judge was saying that a reasonable person, aware of the relevant circumstances, would not have perceived the utterances to be a real threat but, rather, would have dismissed them as just “crazy talk.”

[86] Second, the trial judge expressly found that Ms. Shaver was of the view that, in making these statements, Mr. Evans was just “blowing off steam.” [64] The trial judge made specific findings that Ms. Shaver was “forthright and candid” and “reliable and credible” in her evidence. [65] As I read the trial judge’s reasons as a whole, the trial judge was of the view that there was merit to Ms. Shaver’s view that Mr. Evans was simply “blowing off steam.”

[87] Third, buttressing the second ground, the trial judge examined the circumstances of the accused at the time of the alleged offences, saying that, “[i]t’s important to put this in context,” [66] and recited a number of circumstances of the context or environment in which Mr. Evans found himself at the time of the alleged offences – which informed the trial judge’s conclusion that the evidence of Mr. Evans must be rejected to the extent that he denied making the impugned statements – but which also informed the trial judge’s acceptance of the evidence of Ms. Shaver that Mr. Evans was just “blowing off steam.”

[88] In this regard, the trial judge noted that, following the collision of August 5, 2017, and as of the date of the first alleged threatening statement on August 11th, Mr. Evans had sustained a broken ankle, a broken toe, and broken ribs, and had spent five days in custody, three of which were in the hospital. The trial judge expressly found that it “would be logical and rational to be upset and angry” [67] in such circumstances and it would be “natural and logical to express these feelings, especially in the safety of his son’s presence in his son’s home and with his son’s partner.” [68] The trial judge went on to note that Mr. Evans was in physical pain as a result of his injuries, that he was using prescribed Percocet and Oxycodone, and anti-depressant medication, and that he was enduring living arrangements that were less than ideal. Again, the trial judge expressly found that it would be “natural and logical to have feelings of anger, upset, even situational depression.” [69]

[89] In my view, the trial judge’s conclusions that it “would be logical and rational to be upset and angry” and “natural and logical to have feelings of anger, upset, even situational depression” is merely another way of saying that a reasonable person in those same circumstances would have had such feelings of being upset and angry. As such, those findings of the trial judge support her acceptance of the evidence of Ms. Shaver that Mr. Evans was just “blowing off steam.” In my view, the implication is that a reasonable person, being made aware of the living circumstances of Mr. Evans and naturally and logically feeling upset and angry in those circumstances, would also accept and share the perception of Ms. Shaver that Mr. Evans was just “blowing off steam.”

[90] Fourth, the trial judge expressly found that at the time of the alleged offences Mr. Evans did not even have the physical ability to carry out his alleged threats of “hiding in the bushes, jumping out and slitting throats … because he was physically restricted in terms of his mobility due to his injuries.” [70] In my view, it is clear that what the trial judge was saying was that a reasonable person, aware of the circumstances in which the words were uttered and, in particular, aware of the realities of the physical restrictions imposed on Mr. Evans by his injuries, would have merely dismissed the comments of Mr. Evans as idle threats or venting or blowing off steam but would not have perceived the comments as bona fide threats of death or bodily harm.

[91] It is clear that there was an abundance of evidence before the trial judge to support her findings in this regard.

[92] In particular, for present purposes, I note the ample evidence that supports the conclusion of the trial judge that the statements of Mr. Evans “have a connotation or a context of being crazy talk.” In this regard, I note the following:

a. Ms. Shaver was referred to the events of August 13, 2017, and in the course of describing the condition of Mr. Evans at that time, her evidence was that “he wasn’t in his right mind.” [71]

b. Ms. Shaver was referred to the comments of Mr. Evans that he wanted to hide in the bushes and slit the throats of Ms. Brown and Mr. Bellamy and make them hurt as much as he did, and her evidence was that Mr. Evans “wanted to plant drugs on his property, and he had all kinds of weird stuff that he was saying. … I don’t know, he just kept saying all kinds of stuff.” [72]

c. Ms. Shaver was asked a line of questions about whether she took the comments made by Mr. Evans seriously, and she eventually responded that she did not “think he was in his right mind at all.” [73]

d. In cross-examination, Ms. Shaver expressed the view that she was more concerned about the mental health of Mr. Evans at the time than she was concerned about Mr. Evans potentially making good on his uttered threats against Ms. Brown, as follows: “I was worried about Mr. Evans more than I was worried about what is going to happen to Ms. Brown. Because Mr. Evans wasn’t in his right mind and he was depressed …” [74]

e. In cross-examination, it was put to Ms. Shaver that at the time she heard all these statements from Mr. Evans, she really did not take them seriously, and she replied, “[n]o, I didn’t at the time because my boyfriend assured me that, you know, he can’t go anywhere.” [75]

f. In cross-examination, it was put to Ms. Shaver that she “didn’t think that Fred Evans was in his right mind,” and Ms. Shaver agreed with that suggestion. [76]

g. In cross-examination, it was suggested to Ms. Shaver that “really what you were hearing was Fred Evans blowing off steam,” and Ms. Shaver replied, “[t]hat’s correct.” [77]

[93] As I have indicated above, a trial judge’s assessment of the evidence and findings of fact and her application of accepted legal standards to the facts before her must be accorded substantial deference by the reviewing appellate court. It is not the role of this appellate court to retry the case and reverse findings that were not favourable to the appellant Crown. To the extent that the Crown seeks to have this court set aside these findings, it has not shown any palpable or overriding error that infected the findings made by the trial judge. The findings of fact and the applications of the accepted legal tests to the facts before the trial judge were available to her based on the evidence before the court at trial. I cannot say that the findings made by the trial judge were unreasonable in the circumstances. In my view, the appellant Crown has shown no basis to interfere with those findings.

[94] In sum, there is no merit to this ground of appeal, and it must be dismissed.

[95] The failure of the appellant Crown to establish on appeal that the trial judge erred in her conclusion that the actus reus of the offence had not been made out at trial is sufficient to end the appellate inquiry there and dismiss the appeal.

[96] However, in deference to counsel’s submissions, I would go on to consider the Crown’s argument concerning the trial judge’s treatment of the mens rea element of the offence.

Did the trial judge err in finding that the mens rea was not made out in the circumstances of the instant case?

[97] As I have said, it is common ground that the trial judge did not err in articulating the legal test for establishing the fault element of the offence when she held that the “mens rea is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously.”

[98] The appellant Crown’s submissions correctly acknowledge and add, as set out in para. 22 of its factum, that the “fault requirement is subjective” but that to “determine an accused’s state of mind, a trier of fact will often have to draw reasonable inferences from the accused’s words and the circumstances, including how the words were perceived by those who heard them.” [Emphasis added.]

[99] As noted above, the trial judge reviewed considerable evidence as to how the statements of Mr. Evans were perceived by the person who heard them, that is, Ms. Shaver, from which the trial judge concluded that the statements were just “crazy talk” – a conclusion or inference that, in my view, was available to the trial judge based on, inter alia, the repeated evidence before her from Ms. Shaver that she thought Mr. Evans was “not in his right mind.”

[100] In the same vein, in considering “how the words were perceived by those who heard them,” the conclusion of the trial judge that the utterances were perceived by Ms. Shaver as Mr. Evans just “blowing off steam” was fully supported by the direct evidence of Ms. Shaver before the trial judge. Again, in cross-examination, Ms. Shaver admitted that she thought the comments of Mr. Evans were simply a product of him “blowing off steam.”

[101] The perception of Ms. Shaver – the person who heard the statements made – that she considered Mr. Evans was just “blowing off steam” was, in my view, an important piece of evidence, in respect of which the trial judge was entitled to draw the reasonable inference that Mr. Evans did not subjectively intend his uttered “death-threats” to be taken seriously.

[102] The trial judge drew inferences as to the subjective intention of Mr. Evans based on, inter alia, how his words were perceived by Ms. Shaver, the person who heard them. As reviewed above, the evidence of Ms. Shaver was that she believed Mr. Evans was not in his right mind – consistent with the trial judge’s finding that his utterances were perceived as just “crazy talk” – that she did not take his comments seriously, and that she regarded Mr. Evans was just “blowing off steam.”

[103] These findings and inferences were available to the trial judge based on the evidence before her. As I have said above, as a matter of law, a trial judge’s reasonable factual inferences based on the evidence before her are entitled to deference.

[104] As such, the appellant Crown has failed to establish that the trial judge erred in her treatment of the mens rea element of the office and, accordingly, this ground of appeal must be dismissed as well.

Did the trial judge erroneously require the Crown to prove elements that do not form part of the essential elements of the offence charged?

[105] In paras. 40-44 of its factum, the appellant Crown submits that, in dismissing the charges, the trial judge erred by requiring the Crown “to prove elements which did not form part of the essential elements of the offence of uttering threats” and, in particular, by insisting upon proof that Mr. Evans had the ability to carry out the statements made.

[106] The appellant takes issue with the following passage in the trial judge’s reasons for judgment:

Mr. Evans did not have at the relevant time where we have actual dates for the statements being made the ability to act on hiding in the bushes, jumping out and slitting throats, the first two parts of that, because he was physically restricted in terms of his mobility due to his injuries. Similarly, I had no evidence as it relates to when he was able to recommence driving, whether it’s a motorcycle or a car, and so the statement as it relates to taking a vehicle and driving it into the Bellamy residence and killing all three of them is problematic. For these reasons, all of the charges are dismissed.

[107] The appellant argues that by this passage, the trial judge was in effect requiring evidence that Mr. Evans had the contemporaneous ability to carry out the uttered threats. Given that it is settled law that the Crown does not need to prove that an accused even intended to carry out the threat, the appellant asks, “how then could the Crown be required to prove that they were physically capable of doing so?”

[108] Respectfully, I do not agree with the appellant’s characterization of the quoted passage from the trial judge’s reasons or its import.

[109] In my view, when the impugned passage is read in the context of the trial judge’s reasons as a whole, it is clear that the trial judge was not requiring proof of these “elements” as if they were essential elements of the offence. I would note in passing and repeat that Crown counsel already conceded in oral argument that the trial judge correctly acknowledged the constituent elements of the offence in question and correctly identified the actus reus and mens rea elements of the offence.

[110] It must be remembered that the trial judge had already characterized the utterances as being akin to “crazy talk,” based on her analysis of the evidence of Ms. Shaver. When read as a whole, the reasons of the trial judge repeatedly refer to the context or the circumstances in which the utterances were spoken. In my view, in the passage quoted by the appellant Crown, the trial judge was merely examining the context in which the utterances were spoken and commenting upon the lack of any contrary evidence that may have affected her analysis.

[111] In particular, the trial judge was merely expressing the thought that she does not have before her other evidence that, if it were present, might have made it more likely that a reasonable person would have perceived a threat. That is conceptually quite different than saying that proof of that “other evidence” is required to satisfy an essential element of the offence.

[112] To illustrate by way of example, in a homicide case, one might suppose that a trial judge might remark upon the absence of evidence of the proverbial “smoking gun.” Such a remark, however, should not be considered as tantamount to the trial judge requiring proof of a “smoking gun” as if it were an essential element of the offence.

[113] I therefore dismiss this ground of appeal.

Conclusion

[114] For the reasons above, I conclude that the appellant Crown has failed to establish that the trial judge erred by finding that the actus reus and mens rea elements were not made out in the circumstances of the instant case. Certainly, the Crown has not established that the trial judge committed any palpable and overriding error in her application of the accepted legal tests to the facts before her.

[115] Given my conclusion that the appellant has failed to establish that the trial judge erred in her findings, it is unnecessary to address the Crown’s arguments regarding the proper remedy and, in particular, its argument that this appellate court should exercise its jurisdiction under s. 686(4)(b)(ii) of the Code and enter a conviction, rather than order a new trial, as set out in para. 47 of its factum and following.

[116] Accordingly, the appeal must be dismissed.

Original signed by “Justice J. Paul R. Howard”

J. Paul R. Howard Justice

Date: January 20, 2020

Cited Cases and Legislation

Legislation:

Criminal Code, R.S.C. 1985, c. C-46

R. v. Evans, 2020 ONSC 372

Case Summary

Overview

Factual Background and Decision of the Trial Judge

Issues

Standard of Review

Analysis

Did the trial judge err in finding that the actus reus was not made out in the circumstances of the instant case?

Did the trial judge err in finding that the mens rea was not made out in the circumstances of the instant case?

Did the trial judge erroneously require the Crown to prove elements that do not form part of the essential elements of the offence charged?

Conclusion

Cited Cases and Legislation

Legislation:

Case Law:

Judge

Counsel

Parties

Areas of Law